Hawkins v. Trustees of Rochester

1 Wend. 53

Opinion

By the Court,

Sutherland, J.

The plaintiff by the verdict of the jury, and the judgment of the president of the village thereon, acquired a vested right to the sum awarded to him as damages, which it was not in the power of the trustees to defeat, by discontinuing the proceedings in relation to the street. The power of the trustees, under the 25th section ot ffe act “ to incorporate the village of Rochester,” (Statutes, vol.7, b. 125, passed April 10, 1826,) is analogous to that of the corpo.T4.ion of New-York, in opening and laying out streets. (2 R. J. 408.) In the matter of Dover-street, (18 Johns. R. 506,) the oor-poration were permitted to discontinue their proceedings. Commissioners of estimate and assessment had been appointed, but they refused to act, and the court considered the case standing in the same condition as though no commissioners had ever been appointed ; and they sajr, before commissioners are appointed, or re port made, we do not perceive how any rights can be so vested as to deprive the corporation of the power of refusing to go on. But in the matter of Beekman street, (20 Johns. M. 269,) the court refused leave to the corporation to discontinue their proceedings, commissioners having been appointed, and being nearly ready to report, though no report had actually been made. The principle adopted in these cases is applicable to that now under consideration, and is decisive in favor of the plaintiff’s right to recover.

Judgment for plaintiff.